NJ Supreme Court Can't Comprehend That Everyone Can Be A Journalist

from the journalists-are-special dept

We've covered the case of Shellee Hale for a few years now. She was sued for defamation over some comments she left in an online forum concerning a software company for the porn industry, Too Much Media LLC. Hale claimed that she got the information from a source as part of an investigation she was doing for a website which she had not yet opened. However, she posted some of that info on this forum, and upon being sued, tried to claim journalistic privilege in protecting her sources under New Jersey's journalist shield law. Both the district court and the appeals court ruled against her, suggesting that because the online forum was not an appropriate venue for journalism, there was no journalism shield. She appealed to the New Jersey Supreme Court, which has tragically upheld the lower court rulings, once again taking issue with the venue:

We do not find that online message boards are similar to the types
of news entities listed in the statute, and do not believe that
the Legislature intended to provide an absolute privilege in
defamation cases to people who post comments on message boards.

But I don't think that's what anyone was trying to claim. This isn't about the venue, but about the action. Journalism is not a venue, it's a process. If the information was acquired in the course of journalism, it shouldn't matter where it was published. Yet all three courts seemed to miss this key point and focus mainly on the venue issue. So, even if you're doing journalism, but publish it somewhere the judges don't like, suddenly, you're not doing journalism. This is quite strange and I don't buy the court's explanation here. They even note that the law itself is written broadly to protect "all significant news-gathering activities." And yet it still says that venue of publication is a key factor in determining what is journalism. This is an outdated and, frankly, troubling view of journalism. The court even goes on a bit of a screed about "unfiltered, unedited" forums as being this anarchy of the internet that does not resemble journalism.

Once again, that's totally irrelevant. What others do on forums is meaningless. The entire question should have been whether or not Hale was engaged in the action of journalism. The court warns that if Hale's argument is accepted than "anyone with a Facebook
account, could try to assert the privilege." But, what's wrong with that? If the person is actually engaged in journalism, than what's the problem? Nothing in what Hale was claiming would mean that everyone with a Facebook page was automatically protected by the shield law. The person would still need to prove that they were engaged in journalism. It's really too bad that the New Jersey Courts couldn't see this.

Rich Fiscus posted a nice comment here on Techdirt a while ago that I really liked. The post explains how the courts have perverted the initial intent of the free speech/free press clause to mean "big media corporations" when nothing of the sort was originally intended. It deserves more attention and so I am going to repost it here.

"The discussion about whether Wikileaks should be considered "the press" is entirely ridiculous. The press, as referenced in the US Constitution, isn't limited to 20th century media organizations. In fact, if we limit it to that definition we also have to conclude that there was no press when the Constitution was written. Since it's specifically referenced in the 1st Amendment we can safely say that's incorrect.

The same definition of the press which would exclude Wikileaks from 1st Amendment protection would likewise exclude Benjamin Franklin. His publications had more in common with blogs and issue advocacy websites than modern newspapers. That, in and of itself, tells me it's a faulty definition. What freedom of the press is supposed to mean is freedom of publication. It refers not to a privileged group of people and organizations, but literally to a printing press, which was synonymous with publication when the US Constitution was written.

By extension, any prosecution of Julian Assange for assisting in leaking secret information while allowing newspapers, television broadcasters, and the like to publish classified information they've collected by interviewing government officials without similar action amounts to granting special legal status to The Press which was never intended by the Founding Fathers.

Whether the government has the right to take action over the publication of a particular state secret is something we should certainly discuss and debate. But any answer which relies on whether it was a media outlet or journalist who did the publishing has no legitimate constitutional basis. Likewise, if it was a crime for Wikileaks to assist in leaking US government secrets, it's ridiculous to say mainstream media outlets shouldn't be prosecuted for convincing government officials to leak other secrets.

Sadly, it's primarily The Press themselves I blame for our modern misunderstanding of the 1st Amendment. More than anyone else, they are responsible for the myth that a handful of words in the middle of an amendment enumerating the rights of the people are actually meant only to apply to them, and not to the public at large. They are the first to declare that an individual who isn't part of their fraternity isn't afforded the same protection they enjoy under the 1st Amendment and the last to criticize journalist shield laws which apply only to them. The fact is, there are no rights of The Press enumerated in the Constitution. Only rights of the people which also extend to The Press."

Re: Re:

Re:

The insight there is that the definition of journalist / journalism must be controlled so that public opinion is only shaped by correct thinking and not by wrong thinking ideas that are dangerous or even rise to the level of thoughtcrime.

Re: Re: Re:

In old good Soviet Union there was no way to get published if you were not a member of the Guild of Authors (Союз писателей), so at least it was never a question of venue. Bureaucracy and Authority always gravitate towards such simplicity, so if no one fights Orwellian tendencies, we will eventually end up there.

Actually...

Not so bad...

The ruling isn't as bad as you're making it out to be. The court specifically said that blogs can be covered by the law, just not comments threads.

While a stronger shield law might have been nice, I can certainly understand how the court might think that the legislature intended to differentiate between a comment thread (which is more like "talking") and a blog (which is more like "publishing news").

Re: Not so bad...

In particular, your headline here seems highly misleading: the NJ Supreme Court apparently can comprehend that everyone can be a journalist, but wants everyone to publish in a very slightly more formal form if they want the shield law to apply to them.

Re: Not so bad...

The ruling isn't as bad as you're making it out to be. The court specifically said that blogs can be covered by the law, just not comments threads.

That's exactly my problem with the ruling. I never said anywhere that this mean bloggers can't be journalists (why even bring that up?!?). I merely pointed out -- as you note -- that they seem to base the decision on the publishing venue. I find that problematic.

If a journalist is doing research for a report, and first publishes some of that info on a relevant message board before publishing the full story, it was still done in the course of journalism. Why should that be punished?

Re: Re: Not so bad...

What the court is saying is that people who are journalists for part of their life cannot extend that shield to all parts of their life. There is a difference between what is posted as part of a blog, journal, or other, and comments made on a vbulletin chat board.

It is the virtual version of the difference between a journalist writing "confidential sources say that Mrs Smith has a lover" and the same journalist, standing at the office water cooler, saying that he heard from someone that Mrs Smith a slut. The venue and circumstance of the statement, the tone, and for that matter the context has a lot to do with if this is a journalist endeavour or just personal comments.

I know it's hard to judge because there are no simple hard and fast rules. It is why the court is careful in it's decision, otherwise everyone will walk around saying whatever they want, attribute it to a third person, and say "I'm a journalist" when asked to answer for their outrageous statements.

Re: Re: Re: Not so bad...

"I know it's hard to judge because there are no simple hard and fast rules. It is why the court is careful in it's decision, otherwise everyone will walk around saying whatever they want, attribute it to a third person, and say "I'm a journalist" when asked to answer for their outrageous statements."

Oh, give me a break. This is how reality already works. When people hear things from other people who don't want to give away the source, those other people simply say, "I heard from someone, but I wont' say who, that ..." and they should have absolutely no obligation to reveal their sources. There is absolutely nothing outrageous about this, it's called reality. and if someone does make outrageous statements, guess what, they quickly gain a reputation of such and so people will consider the history of the extended source along with the information. and if no one knows the extended source then people will also consider that before drawing conclusions. Not to mention people will also consider the fact that the original source is unknown and so even if the extended source is telling the truth, that says nothing about the integrity of the original source.

People have been doing this for thousands of years. It's nothing new and it's no big deal. Nothing outrageous going on. and it mostly shouldn't be any of the governments business (unless there is a legitimate security threat).

Re: Re: Not so bad...

You said:

"If a journalist is doing research for a report, and first publishes some of that info on a relevant message board before publishing the full story, it was still done in the course of journalism. Why should that be punished?"

Here's the rub in THIS case. I think that the judge could find no evidence that she WAS (as she claimed) doing research with an eye towards publishing a story (on her blog or otherwise). There was some dowbt as to the validity of "her site" which was never launched as well.

In this case it seems to me to be someone who just posted something on a message board and tried to claim bogus Journalistic Shield protection when the company called her on it.

It's not completely about the venue, it IS somewhat about the process. She couldn't show that she WAS posting "in the course of journalism"

Random message board comments are NOT journalism and should NOT be protected as such.

Re: Re: Re: Not so bad...

Also, your point about whether or not she WAS doing journalism is pointless. The point is, this IS about the venue. Maybe not completely, as you have pointed out, but why should the venue matter AT ALL?

Frankly, the extent to which they focused on the venue might lead one to believe it is likely that she WAS doing journalism. Otherwise, why did they have to focus so much on the venue to rule against her?

Re: Re: Re: Not so bad...

"Random message board comments are NOT journalism and should NOT be protected as such."

The trouble is, I think, not so much whether or not it was posted on a message board, random or not, but how she posted it. If she came out and said:
person-x is a douchebag and should go to jail",
that is not journalism.
If, however, she said:
"Person-x has committed these crimes as evidenced by this evidence which is punishable under this law by this penalty, etc. etc. etc."
She is coming forth with a news story that has evidential support and merit. Work she has provided, through research and effort on her part, in order to develop a story based on fact on the actions of person-x, is what makes this a story. The case should have been over when she showed the judge, with private information redacted as allowed by the 1st amendment, her story and evidence.

Effort was put into this to make a story, as such she likely has research into her story. That makes it journalism. This is not someone saying I want to claim journalistic privilege so I do not get in trouble. That argument is not what is at hand here and shouldn't even come up. This is I am a journalist, I worked hard to develop a news story, now I am being accused of not being such despite all my work into creating this story because the point of publish is not "acceptable". Ultimately, who cares as long as the story has been researched and the story follows that research.

Let's add the context

What is missed completely here is the context of the posts TMM parsed out of a thread and claimed defamatory. A Class Action Law Suit had been filed against TMM tinyurl.com/3gkea2t, I reported it just after it hit Pacer.

The discussion on the forum followed a re-post of a portion of a piece I wrote and linked to the full article on my own website (see pages 2, 6 and 8 of the NJ Supreme Court opinion, they acknowledge this). The very issue they were asked to rule on they avoided, focusing on one venue but not the other. The source I am protecting was threatened and their safety was my concern.

I believe this will be debated for years. Since posting on a forum is personal and not part of my journalistic work and not protected by the Shield Law according to the NJ Supreme's don't you think I got SLAPP'ed by TMM now that you understand the context?

Remember they claim no monetary damages and their only complaint is I "hurt their feelings."

The Test

It eventually devolves into a test of how much money you have. If you can afford the lawyers for a protracted legal fight with the government, then you're a journalist. If not, then you're not. That makes it kind of easy to sort them out.

Fortunately, I am covered since I carried insurance for defamation under my personal umbrella policy and my business policy.

I agree Bnesaladur, in the future I wish they would consider appointing independent private counsel to verify the source and represent to the court the validity of what was reported without giving up the person's identity.

...

Well, nowadays there are as many journalists as photographers. That's stylish to be a journalist, but this is not easy to be. You need to be extremely creative, talented and stressful. I know that for sure cause my best friend is a journalist, and I can confess he's a master of his business. Thanks for this article!
Sydney